Monday, September 20, 2010

Kidnapped Canadian, Part II, Border Patrol Fabricates Evidence

Drawing from recently obtained immigration court records, this is the second of five pieces describing how U.S. immigration agents turned a Canadian couple's vacation into a nightmarish trip through the labyrinth of immigration deportation proceedings. To read Part I, click here.

The photo shows Murray Danard, a field machinist, in his shop in Alberta. "It's a small town and knowledge of my arrest has been damaging to my business," Mr. Danard said.

On November 20, 2008, Kenneth Murray Danard, who lives in Whitecourt outside Edmonton, Canada with his wife, Rachel, was unlawfully locked up in the Sweetgrass, Montana Border Patrol office based on trumped up charges and then held in solitary confinement for two days at the Shelby Jail in Montana under the authority of the Department of Homeland Security (DHS). Then he was shipped to a prison in Florence, Arizona, all without ever being notified of the charges against him, and pursuant to a truly insane effort to imprison him during deportation proceedings in Arizona when his only wish was to go home immediately to Canada.

A "Notice to Appear" is the legal document DHS uses for explaining why someone is being placed in deportation proceedings. It is supposed to include the respondent's signature verifying receipt of this document. Instead of Mr. Danard's signature, Larry Allen, a Customs and Border Patrol (CBP) officer, wrote above the signature line "Refused," an assertion inconsistent not only with Mr. Danard's detailed narrative of making repeated inquiries of ICE officers as to why he was being held, but also inconsistent with the document itself.

Officer Allen did not even bother to fill out the space on the top of the box for the notice that indicates the date. A properly executed attempt to serve a document would at least include the date attempted, even if the document itself were not signed and helps explain why Mr. Danard felt he was being kidnapped.

Perhaps one reason the CBP officers did not give Mr. Danard a copy of his charges is that they were based on a fictional narrative of his comings and goings. If the officers followed the law and informed Mr. Danard of their claims against him he would have been able to better defend himself, something that the DHS seemed intent on preventing. Knowledge of these charges also would have assisted Rachel, who was soon in touch with the Canadian consulate in Los Angeles.

According to Mr. Danard's charging document, the agent who signed off on Officer Allen's statement that Mr. Danard had refused to sign this paper was Tiffany Throckmorton, the Chief Officer at the Port of Sweetgrass.

The November 20, 2008 document charges Mr. Danard with being admitted into the United States at El Paso on November 11 as a B-1 visitor, meaning someone entering the country for doing business, and then claims that he is inadmissible because of the 1984 burglary conviction and therefore subject to being held for deportation proceedings.

The fact is that Mr. Danard returned from Mexico via El Paso as a tourist, someone who would be classified for a B-2 visa if these were required of Canadians, which they are not. And, Mr. Danard had demonstrably left the United States from Montana and was attempting to re-enter at Sweetgrass, Montana, as indicated by the fact that the CBP officials required him to complete new paperwork to re-enter the country. "When we attempted to re-enter the States," Mr. Danard explained, "the officer on the US side wanted me to fill out a form inside the building, saying that I had technically left the US and was required to apply for admission again."

Nothing in Mr. Danard's passport or the government records indicate he was ever given a B-1 visa, much less that it was used to enter El Paso. His passport does contain an erroneous B-2 visa stamp that was inserted in his passport in Arizona in October, while he was in the airport in transit to Mexico. (Canadians do not require visas and if he were to have received one, it should have been a transit visa, not a tourist visa.) [Update, 9/27/10, please see bottom for more information on Canadians and C-1 transit visas.]

The reason for the fake paperwork illegally hidden from Mr. Danard's inspection is that the CBP is not supposed to arrest people and charge them with being in the country illegally if they are only trying to enter the country. 8 CFR 235.4 gives CBP the authority to allow inadmissible immigrants to withdraw applications for admission, rather than face arrest. The CBP Field Manual provides the guidelines for its agents to do this:
Aliens who are inadmissible because their NIV has been canceled under section 222(g)(1) of the Act may be offered the opportunity to voluntarily withdraw their application for admission, unless there are other related underlying reasons for proceeding with expedited removal, such as long-term or repeated overstays, or other egregious immigration violations.
Because Mr. Danard did not meet any of the criteria for being arrested and not turned around, the CBP agents, eager to crank up their arrests but not interested in drawing attention from their superiors for doing this based on inadmissibility at the border and not unlawful presence, filled out a form to make it appear as though Mr. Danard was continuously in the U.S. (Again, the only reason Mr. Danard was filling out a form asking about his arrest history was because CBP in Sweetgrass was telling Mr. Danard to apply for admission.)

Border Patrol did have the authority to arrest him and put him through deportation proceedings, but perhaps because the agency policy discourages this, the officers tried to cover-up what actually had occurred and thus manufactured a false arrest.

The government's secret filing of immigration charges is part of a pattern of I have observed across the country, notable in immigration court when the adjudicators, who have copies of the Notices to Appear (NTA), tell the respondents that they had refused to sign them, and the respondents spontaneously and indignantly reply that they were never shown these documents. This frequently happens when ICE decides to deport people in jails based only on the fact that the folks imprisoned are foreign-born.

The practice results in effective kidnappings in these instances as well, as people believe they are being released from jail or prison and instead find themselves in the back of an unmarked white van heading to a destination unknown to even them, much less their friends and family.

Moreover, the Executive Office of Immigration Review's recently announced policy of requiring the dates from the Notices to Appear in order to obtain information about immigration hearings means that respondents and their attorneys are further at the mercy of ICE deportation officers, who can arrange for people to be deported just by not bringing them to the hearings, and the incarcerated respondents or attorneys won't know they've missed them.

MORE to come: Immigration Judge terminates proceedings, ICE reserves appeal, DHS common pattern of using detention to extort false confession clearly documented, weeks more of incarceration.

UPDATE, 9/27/10: Thanks to Dan Kowalski for sharing more information on C-1 visas for Canadians: "99.999% of Canadians are properly admitted as B-1s or B-2s. C-1 Transit Visas are quite rare, and [difficult] to apply for:
In theory he might have qualified, but no sane Canadian would apply for C-1 unless necessary.
[They are] mostly for guys who work on cargo ships who fly into LA from Manila, then "transit" from LAX to their ship docked in Long Beach..."

(Mr. Danard received a B-2 stamp in an Arizona airport while he was going from one terminal to another en route to Mexico.)

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